Foreign Direct Investment Regulation in Brazil: From Resistance to Investment Bilateral Treaties to the Emergence of a New Regulatory Model

Abstract

The goal of this article is to analyze the regulatory evolution of foreign investment in Brazil. In comparison with its peers, Brazil has enjoyed for years the reputation of a rebel regarding the regulation of foreign direct investment (FDI). In the 90s, when the world seemed to peacefully agree on the regulation of investment via bilateral investment treaties (BITs), Brazil expressed all its insurgence by resisting to this model, arguing that that such agreements confronted pro- visions of its Constitution. Challenging the view that BITs were necessary to attract investments, the absence of this regulatory instrument has not overshadowed the interest of foreign investors in the country, which remained one of the main recipients of FDI. However, changes in domestic and international economy boos-ted Brazilian companies to other countries in the south of the continent and in Africa, what led Brazilian investment policymakers to redesign the national strategy. In this context, a new regulatory model emerges again in a rebellious fashion, which is now based not on the denial of the models in place, but rather on the uniqueness of its terms. This new model addresses the so-called legitimacy crisis of the global regime of investments and promotes more balanced and cooperative investment relations. The analyses developed in this paper depart from primary (national and international regulation) and secondary documents (specialized literature).

Keywords: International investment law, international investment agreements, Brazil